When faced with legal claims from employees or former employees, more and more employers conduct a search of the employee’s computer used at work.  Occasionally, the employer will find e-mail or other correspondence between the employee and an attorney retained to evaluate legal claims against the company.  Several courts are looking for the first time at whether such communications can be used by the employer to defend legal claims, or whether they should be excluded from evidence due to the attorney-client privilege.

Last month, the Supreme Court of Virginia concluded in Banks v. Mario Indus. of Virginia, Inc., that the attorney-client privilege does not extend to such communications.  In this case, the employee had prepared a “pre-resignation” memorandum on his company computer.  When later introduced into evidence by the company, the plaintiff claimed that this was a communication prepared at the instructions of his attorney.

The Virginia Supreme Court refused to apply the privilege to this document.  The court started with the basic presumption that the computer system belonged to the employer.  Even though employees were permitted to use the computers for personal business, there was no expectation of privacy for any documents created using the employer’s system.  The employee had in effect, waived the privilege by creating the memorandum on his employer’s system.

North and South Carolina courts have applied similar principles to expectations of employee privacy over use of company computer systems.  Employers should adopt clear electronic communications policies that explicitly advise employees that the computer systems and any of their contents are company property and that there is no expectation of privacy for any documents or communication that use the system.  These policies can help preserve a potentially powerful tool for employers involved in litigation with former employees.